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Expert Brief

Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context

The notion that citizens have a constitutional right to carry weapons in public originates in the antebellum South, and its culture of slave-holding and violence.

Published: September 25, 2015

In recent years, follow­ing the Supreme Court’s land­mark origin­al­ist opin­ion in District of Columbia v. Heller, courts have been asked to strike down restric­tions on the public carry­ing of hand­guns on the basis of the original under­stand­ing of the Second Amend­ment. One of the key sources used to justify this outcome is a family of opin­ions from the ante­bel­lum South assert­ing an expans­ive right to carry weapons in public. In this essay we explore whether that body of case law reflec­ted a national consensus on the mean­ing of the right to bear arms or, in the altern­at­ive, a narrower regional concep­tion of this right. We discuss how the South’s distinct­ive culture of slavery and honor influ­enced both public carry and regional juris­pru­dence, and how the case law origin­at­ing from that culture cannot be exten­ded to the rest of the coun­try without explan­a­tion. We then draw on new post-Heller research to discuss an altern­at­ive Amer­ican tradi­tion — predom­in­ant outside the South — that was less enthu­si­astic about public carry and more accept­ing of public carry regu­la­tion. This analysis suggests that the view of the right to bear arms expressed in the nine­teenth-century South­ern opin­ions falls woefully short of reflect­ing a national consensus. Moreover, judges seek­ing histor­ical guid­ance in public carry cases today should look to the altern­at­ive tradi­tion that presumed the consti­tu­tional sound­ness of broad public carry restric­tions.

Fire­arm Region­al­ism and Public Carry: Placing South­ern Ante­bel­lum Case Law in Context